What to Tell Your Client Who is Pulled Over for DWI

By Ned Barnett

I’ve been handling cases involving allegations of driving while intoxicated (DWI) since 1987. Over the years, there has been significant political pressure to “crack down” on DWI cases, and organizations leading the charge are as strong as ever. The penalties are becoming more severe, and most people realize that a DWI conviction can be a serious, life-altering event.
In a city the size of Houston, people are going to drink and drive, and a large number of people will be charged with DWI. Many of these are successful business people who have a spotless record and want to keep it that way. I am constantly asked by civil attorneys how to advise clients in the event they are stopped for DWI. In this article, I will describe what is likely to occur during a typical DWI arrest, based on my experience in dealing with such cases. I will outline the driver’s rights and make recommendations on what to tell a client if they are stopped for DWI.
Let’s imagine a hypothetical aspiring young banker, Jim Bean. Jim graduated with an MBA from UT and has accepted an offer from a prestigious investment banking firm in the Galleria area. After a long first week at work, Jim and his wife, Sarah, meet some friends for happy hour at a Mexican restaurant on Richmond around 5:30 p.m. Jim is tired, but agrees to go. Two margaritas later, Jim and Sarah leave the happy hour for her friend’s birthday party in Tanglewood to “make an appearance.” At the party, Sarah gets caught up talking with an old volleyball friend. Jim has a Grey Goose and soda while he waits for his wife. An hour later, Sarah is ready to go, but as they both get into the car, Jim remembers that he has not eaten since lunch, and he feels a little “buzz.” They go to dinner at a local Italian restaurant, where Jim orders their customary bottle of Cabernet. As usual, he ends up drinking most of the bottle. Feeling tired and ready to get home, Jim tips the valet as they leave around 8:30 p.m.
Taking a shortcut down Chimney Rock to their house in Memorial, Jim looks down at the speedometer and realizes he’s going 40; the speed limit is 30. He slows down, but there are flashing police lights in his rearview mirror. Immediately, Jim thinks about the possibility of DWI. “How many drinks did I have?” he wonders. He feels fine to be driving but does not know if he is legally intoxicated. As Jim slows down, his fear intensifies. He remembers the horror story of a friend whose life was devastated by one DWI. Jim pulls over to a side street, turns his flashers on, and waits. The police officer walks up to Jim’s car and asks him for his driver’s license and registration. He shines the flashlight straight into Jim’s eyes, making him wince. “I noticed you swerved a little back there, and I clocked you at 42,” the officer notes. “Have you had anything to drink tonight?”

What should I advise a client to tell a police officer after he’s been pulled over?
The most critical question a driver is faced with is how much he’s had to drink. When an officer asks this question, the driver should be aware that what was once a routine traffic stop has now become a full-blown DWI investigation. If the driver volunteers any information, he could incriminate himself. I would advise the driver not to answer any questions until he is allowed to speak to an attorney. He has this right. Furthermore, the actual request for an attorney is constitutionally protected and cannot be introduced at trial. When there is any risk of a DWI conviction, almost any statement could be harmful. It is best for the driver to invoke the Fifth Amendment.

How much alcohol does a person have to drink to be legally intoxicated?
In Texas, intoxication is defined as: (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.1
The 0.08 means 0.08 grams of alcohol per 210 liters of breath. The amount a motorist has to consume to be at 0.08 varies substantially from person to person. For example, someone that weighs 180 pounds would have to consume approximately four or five beers in an hour to meet this threshold. There are numerous blood alcohol calculators on the internet, but the algorithms used are mere estimations, which do not take into account other factors, such as how much a person has eaten or body metabolism.
Not knowing exactly what to do, Jim admits that he has had a couple of drinks. He figures the officer, after realizing that he has pulled over a productive, upstanding citizen, will sympathize with Jim’s circumstances and let him go with a ticket.
While Jim is explaining how tired he is, the officer interrupts him, and asks, “Do you know what time it is right now?”2
Jim is stunned by the question, and stutters before answering, “Well, we left the party at 7:30. . . So it must be around . . .”
“What party?” The officer interrupts again.
“A friend of my wife’s had a birthday party. We just stopped by for a couple minutes. I didn’t drink much.” There is a tinge of anger in Jim’s voice.
“What did you have to drink at the party, sir?”
“Just a drink or two.”
“And that’s all you had, nothing after that?”
“Well, we went out to eat, and we had a bottle of wine. . .” Jim fades off, amazed by how badly the conversation is going. He’s starting to realize that being honest is not getting him out of this. There is a long pause.
“Sir, I’m going to ask you to step out of the vehicle.”3
After giving Sarah a “can you believe this” look, Jim opens the door. He uses the door to lift himself up and leans against his car while the officer runs his drivers license.4
Standing amid police lights that seem to bounce off of everything and waiting for the officer to return, Jim has a thousand thoughts running through his head. He is already sweating in the Houston heat. A quick glance at his watch shows that it is already 9:00 p.m. The situation seemed so harmless just a few minutes ago; he was enjoying what he thought then was a legal buzz. Now he wasn’t so sure. Jim knew 0.08 was a pretty low limit, and he is scared to death he might be over.
The officer comes back from his squad car and asks Jim to take the field sobriety tests. Initially reluctant, the officer explains that if Jim refuses, he will be arrested. Feeling relatively sober, Jim convinces himself that he will probably pass any test and be able to get home in a few minutes.

What are the Standard Field Sobriety Tests?
Officers that make DWI arrests must take a 40-hour class taught by the National Highway Traffic Safety Admin-istration (NHTSA). As part of the training, officers are instructed to administer three Standardized Field Sobriety Test’s (SFST’s) on the roadside to determine whether a motorist will be arrested for DWI. The three tests are: 1) the One Leg Stand Test, 2) the Walk and Turn Test, and 3) the Horizontal Gaze Nystagmus test.
The one leg stand test and the walk and turn test are divided-attention tests that require a person to concentrate on mental and physical tasks at the same time. In the one leg stand test, the motorist is asked to put both hands at his side and lift one leg for 30 seconds while counting out loud. In the walk and turn test, the motorist is asked to place one foot in front of another, again with his hands at his sides, and walk in a straight line for 9 steps while counting. He is then required to turn in a very specific way and walk back. For this and the one leg stand test, the officer looks for “clues” to determine whether the driver passes.5
The horizontal gaze nystagmus test is the third field sobriety test. A “nystagmus” is an involuntary movement of the eye. The driver is told to stand still and follow the pen with his eyes while the officer slowly moves the pen from left to right approximately 12 inches in front of the driver’s face.6

Should I advise my clients to refuse the field sobriety tests?
The Field Sobriety Tests are completely voluntary. The tests are challenging, even when sober. Some people simply cannot pass the tests. Balance varies from person to person. Some people become very nervous and other factors, such as what type of shoes the driver is wearing or the condition of the street, can make the tests more difficult. A person who has been drinking should not self-evaluate her ability to perform these tests. An attorney will be able to more effectively defend charges where the driver has refused to do the field sobriety tests. By refusing the tests, a person is limiting the evidence against himself. Finally, and most importantly, failure of a SFST is direct evidence of intoxication.
Moreover, if a driver takes the field sobriety tests, he will probably be videotaped. This footage will be part of the State’s evidence at trial.
In conclusion, if the driver has had anything to drink, I recommend he not attempt the field sobriety tests.
“Now I would like you to do something for me,” the officer tells Jim. “This is called the one leg stand test.” Jim listens to the instructions, then lifts one leg off the ground and starts counting. Standing on his right leg, Jim feels pain in his right knee, originally from a high school basketball injury, and recently aggravated. At the count of 1011, Jim wobbles and puts his arms out for balance, and at 1015 he drops his leg. Finally, he reaches 1020 and the officer orders him to stop. “Did I pass?” Jim wonders.7
After failing the remaining two standardized field sobriety tests, the walk-and-turn and the horizontal gaze nystagmus, the officer arrests Jim for DWI.8 He tells Jim that Sarah will be arrested for public intoxication unless someone can pick her up in the next 15 minutes. Luckily, Sarah’s volleyball friend answers her cell phone and hustles over to pick Sarah up. Jim is handcuffed and put in the back of the police car where he is taken to the downtown police station.
At the station, Jim is read a formal request to take the breath test. During a long recitation by the officer, Jim starts thinking about how this DWI could ruin his life. The officer says something about losing his driver’s license if he refuses and looks at Jim. “You’ve been offered the breath test. Are you going to take it?”

What is the breath test?
The breath test is perhaps the most critical part of the DWI investigation. Many people think that breath test machines are carried in the police cars. However, they are located at the police station. Many experts believe these machines are notoriously inaccurate. Even a machine that is considered working correctly is allowed to have as much as a 20 percent error! That means that you can actually be a drink or more away from intoxication but be found to be 0.08 or above by the machine.

Should my client take the breath test?
No! He should not take the breath test. The machine is not accurate. I own one and I am certified to operate it, and I know from experience the machine is not reliable. I would much rather explain to a jury why a person refused the test than why a person failed the test.

What happens if my client refuses the breath test?
If your client refuses the breath test, the first thing that happens is his driver’s license is physically taken and he is issued a temporary license. Your client is then subject to a six-month license suspension. If he takes the breath test and blows over the limit, the suspension is three months. In both cases, a person is entitled to a hearing to contest the suspension. A qualified DWI attorney is essential at this stage. If a license is suspended at the hearing a person might still obtain an occupational drivers license if they obtain the judge’s approval by showing good cause.

Does my client have the right to a blood test?
For all practical purposes, no. Under Texas law, your client technically has a right to a blood test. However, that is only after he has taken the breath test. Additionally, your client must arrange and pay for the administration of the blood test, which is obviously difficult, if not impossible while in custody.

Does my client have the right to speak to an attorney before taking the breath test?
No. In Texas, a driver that is under investigation for suspicion of DWI has no right to counsel before taking either the field sobriety tests or the breath test.
After a few moments, Jim asks if he can first talk to an attorney. He is told that he cannot. Jim thinks it over, and decides that he will not gain anything by refusing the test, but may clear himself if he passes. Feeling a lot more sober and motivated, Jim decides to take the breath test. He scores a 0.09 at 10:02 p.m. He is formally arrested, read his Miranda rights, and put in jail.
After being booked, Jim is allowed to make a phone call at about 4:00 a.m. He calls his wife Sarah, who has no idea what to do. After a brief frenzied conversation, she hangs up the phone and immediately calls the only attorney she knows, Ronald, a well-known civil attorney. Ronald tells Sarah he will call her right back. He wakes up the only criminal defense attorney he knows, who calls a bondsman and starts the process of bonding Jim out of jail. Jim is bailed out at 4 p.m. the next afternoon, and neither Jim nor Sarah will forget this unhappy experience.

How do I get my client out of jail?
First time offenders, absent aggravating circumstances, will be required to post a $500 bond. This means someone is going to have to post the money with the county to get the person out of jail. There are two options: 1) post the full $500, which will be returned months later when the case is over, or 2) hire a bondsman to make the bond for you. I recommend hiring a good bondsman. This service should cost approximately $125. This eliminates many headaches and should get the person released from jail as quickly as possible.

What outcome can my client expect from a DWI charge?
On a first offense DWI without aggravating circumstances, such as an accident before the arrest, an extremely high breath test reading, or extremely high intoxication, the District Attorney’s office does not typically pursue jail time. The alternative to jail is probation. While on probation, a person must satisfy the judge’s orders.9 If a person is found in violation of any of these conditions, they face up to six months in jail.
Many DWI cases are winnable if handled by a qualified attorney. Each case is unique and requires special training and experience to defend. I believe an attorney should be certified to administer the standardized field sobriety tests to be able to effectively cross examine the police officers. The attorney should also be certified to operate the breath test machine and understand the science behind it. To competently defend DWI cases, it is essential to have a complete knowledge of the unique rules and laws that apply to them.
By following this advice, a person will have a much better chance of avoiding a DWI conviction.

Review: What to do in a DWI Pullover
• Don’t drink and drive.
• If you’ve had more than a drink or two, ask to speak to your attorney before answering any questions.
• Refuse the breath test.
• Refuse the field sobriety tests.
• You have no right to a blood test.
• All your actions, even if you refuse the tests, are being recorded on video.
• Hire a bail bondsman to get you out of jail.

Endnotes
1. Tex. Pen. Code ¶ 49.01 2. The officers are actually trained how to ask questions that can confuse a driver. These questions are designed to force the driver to concentrate on more than one thing at a time. This type of questioning involves asking unusual questions or asking interrupting or disrupting questions. If a driver sounds confused, that can be used as evidence that he’s intoxicated. 3. In order to ask a driver to step out of his car, the officer must have a reasonable suspicion that a DWI has been committed. Reasonable suspicion is present when there are “specific articulable facts which, taken together with rational inferences from those facts, lead the officer to conclude that the person . . . has engaged in criminal activity.” Terry v. Ohio, 392 U.S. 1, 30 (1968). In practice this is an easy standard to meet. Dept. of Trans. DWI manual, 2002 Edition, Page VI-2. 4. Officers who suspect a DWI pay close attention to how a driver gets out of his car, whether he uses the door to get out, and whether he leans on the car when out. All these actions get a “point” which is recorded by the officer and later used to articulate the officer’s probable cause that a DWI occurred. Id. at VI-6. 5. For the one leg stand test, the “clues” are: the driver 1) sways while balancing, 2) uses arms for balance, 3) hops, or 4) puts his foot down. Id. at VIII-13. 6. “Clues” for the walk and turn test are: the driver 1) cannot keep balance while listening to the instructions, 2) starts before the instructions are finished, 3) stops while walking, 4) does not touch heel-to-toe, 5) steps off the line, 6) uses arms to balance, 7) makes an improper turn, 8) makes the incorrect number of steps. Id at VIII-10. 7. For the nystagmus test, the three clues are: 1) the driver’s eyes cannot follow a moving object smoothly, 2) Nystagmus is distinct and sustained when the eye is held at the maximum deviation for four seconds, and 3) the eyes “jerk” before they reach 45 degrees. Id at VIII-5. 8. In fact, Jim failed with three clues. Id. at VIII-13. 9. Jim is technically not under arrest, he is only being detained for suspicion of DWI. He is not legally arrested until after being offered the breath test. Examples of probation conditions include: community service, DWI classes, no law violations, reporting to a probation officer, fine, court costs, and monthly probation fees, no consumption of alcohol, maintain employment, and drug and alcohol evaluation and treatment if necessary.

Ned Barnett is a criminal defense attorney who has represented people accused of DWI since 1994. Previously, he was an Assistant District Attorney. Barnett is board certified in criminal law, a founding member of the National College of DUI Defense and a lifetime member of the National Association of Criminal Defense Lawyers. He is a frequent lecturer on the subject of DWI and of counsel to The Williams Bailey Law Firm.

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